KAILASH CHANDRA MOHANTY Vs. UNION OF INDIA

JUDGEMENT

(1.) APPLICANT in the present Original Application, a retired employee of the Postal Department has approached this Tribunal praying therein for quashing the order of punishment and penalty dated 21.2.2012 vide Annexure -A/8 and to direct the respondents to pay interest @ 12% per annum on the gratuity amount for the period of delay. The facts of the case in a nut shell are that the applicant joined the Postal Department on 10.4.1972 as Postal Assistant under Keonjhar Postal Division as a regular employee. He was subsequently promoted as Postal Inspector, Assistant Superintendent and Superintendent and while working as Superintendent of Railway Mail Service, Berhampur -Gankam Division at Berhampur, he retired from service on 31.7.2010 on reaching the age of superannuation. During his service period he was working as Assistant Manager, Postal Printing Press, Bhubaneswar from 18.7.2005 to 20.12.2005 and thereafter as Deputy Manager in the same Establishment till May, 2008. On 3.10.2006, respondent No. 2, viz., Chief Post Master General, Orissa Circle, issued a Memorandum of Charge against the applicant under Rule 14 of CCS (CCA) Rules, alleging therein that the applicant in violation of the guidelines had allowed his son and three other persons to be appointed as Apprentices (Book Binder) during his incumbency as Assistant Manager, Postal Printing Press. After the applicant submitted his written statement denying the charges, respondent No. 2 appointed one S.K. Kamila, Director, Postal Services as the Inquiry Officer to enquire into the charges framed against the applicant. The disciplinary proceedings were however not disposed of by the Disciplinary Authority by the time the applicant retired from Government service and therefore, he was paid only the provisional pension. Being aggrieved by the inordinate delay in the finalization of the disciplinary proceedings, the applicant approached this Tribunal in O.A. No. 427 of 2011. This O.A. was disposed of by the Tribunal on 7.7.2011 by issuance of direction to respondent No. 2 to dispose of the disciplinary proceedings within a period of three months from the date of receipt of copy of the order and also pass a reasoned and speaking order in the case. Thereafter, on 14.7.2011, the applicant was given a copy of the inquiry report which was dated 18.4.2007 and was asked to make a representation to the inquiry report if he so wished. On receipt of copy of the inquiry report, the applicant submitted his show cause on 3.8.2011 denying the charges framed against him. Thereafter, respondent No. 4, i.e., Assistant Director General (Vigilance), Department of Posts passed the final order dated 21.2.2012 conveying the orders of the President as at Annexure -A/8 enclosing therewith the advice of the UPSC in this matter which is enclosed as Annexure -A/9. According to this order, the President had carefully considered the advice of the UPSC along with the inquiry report, the records of the inquiry, representation dated 3.8.2011 submitted by the applicant and all other connected records of the case. It had been observed that grave misconduct on the part of the charged officer was clearly established and therefore, the President found the advice tendered by the UPSC in the case as based on facts, well -reasoned and speaking and hence acceptable. On acceptance of the advice of the UPSC, the President had decided that the penalty of withholding of 20% of the monthly pension otherwise admissible to the applicant for a period of five years is imposed on Shri K.C. Mohanty, retired Assistant Manager, Postal Printing Press, Bhubaneswar and that his gratuity may also be withheld permanently. This order dated 21.2.2012 is the subject matter of challenge in this O.A.

(2.) APPLICANT has submitted that the respondents have taken a biased view against him just because the apprentice engaged happened to he his son. The role of the applicant in the matter of engagement of apprentices was limited to dealing with this proposal at an intermediary stage since the applicant had put his initial to the noting which was prepared by the dealing assistant recommending engagement of four persons in question. The Inquiry Officer and also the Disciplinary Authority did not appreciate the defence put forward by the applicant and also did not understand that the applicant was a novice in the Postal Printing Press and was not aware of the various regulations and guidelines for engagement of the apprentices. It is pleaded by the applicant that the dealing assistant had prepared the note whereas the Manager, Postal Printing Press had passed the final order engaging the apprentices. The applicant merely in the intermediary stage as Assistant Manager had only put his initial on the note prepared by the dealing assistant. There was no evidence available before the I.O. that the applicant had exerted any pressure on his subordinate officers to put up the proposal of engaging his son as an apprentice. The applicant was also kept in the dark about the letter dated 19.5.2003 containing the guidelines for selection of trainee apprentices. The concerned dealing assistant and also the Manager of the Postal Printing Press were also proceeded against in respect of the charges and they have been let off lightly whereas the applicant has been dealt with severely as if he is the prime accused in this case. The I.O. also erred in holding the applicant guilty of the charges of nepotism and favouritism relying on the evidence collected by the ASP (Vigilance). Another ground of challenge made by the applicant in this O.A. is that the respondents committed grave error in imposing the punishment of withholding pension to the extent of 20% for a period of five years and withholding gratuity permanently whereas no such provision is available under the CCS (CCA) Rules. The order of punishment which has been issued has been called in question as harsh, inappropriate and shockingly disproportionate to the charges that have been levelled against the applicant. It is further submitted by the applicant that the irregularity which was detected was rectified within a period of seven days and the engagement of apprentices was cancelled. Therefore, there was no financial loss caused to the Government. The Competent Authority failed to appreciate this crucial aspect of the matter while imposing the order of severe punishment on the applicant. The unblemished work record of the applicant was completely ignored while imposing the order of punishment. Another issue which has been raised by the applicant is that gross error was committed by the Disciplinary Authority by holding separate disciplinary proceedings for all the three accused persons instead of conducting a common proceeding as provided under Rule 18 of the CCS (CCA) Rules since the charges were the same. Moreover, since the apprentices engaged were discharged only after 3/5 days and were not allowed any stipend, the punishment of withholding 20% of pension for a period of five years and withholding gratuity permanently is grossly disproportionate and is liable to be struck down by the Tribunal. The above grounds have been urged by the applicant in the O.A. for challenging the impugned order.

(3.) THIS order of punishment has also been implemented by the Director of Accounts on 27.3.2012. With regard to the delay in finalization of the disciplinary proceedings against the applicant, it has been submitted by the respondents in the counter affidavit that the delay was not deliberate. Because of serious irregularities detected in the engagement of the apprentices in the Postal Printing Press, Bhubaneswar, the disciplinary action was initiated against the present applicant along with others and also the Manager, Postal Printing Press, Bhubaneswar. The advice of UPSC was also required before the enquiry report could be forwarded to the charged officer. Because of the grave misconduct on the part of the applicant and others, utmost care was taken to finalize the inquiry report which became a time consuming process. It is also denied by the respondents that the Inquiry Officer and the Disciplinary Authority failed to appreciate the submission made by the applicant, as alleged by him, in this O.A. On the other hand, the inquiring authority has taken into consideration all the points of defence raised by the applicant and has given a reasoned finding as to how those submissions were not acceptable. Further, the plea taken by the applicant that he was not aware of the guidelines is most unacceptable. As Assistant Manager (Admn.), it was the duty of the applicant to properly assist and guide the Manager. In a case which involves selection of son as an Apprentice, the applicant should have properly guided the deciding authority. Instead of accepting his responsibility, he has tried to shift the responsibility on the dealing assistant and also the Manager of the Postal Printing Press. This is an undesirable conduct of the applicant. The fact of the case clearly establishes that the applicant showed nepotism and favouritism by sending the proposal for taking his own son as apprentice in the Postal Printing Press. Even if the irregularity was later on detected as well as corrected, it does not exonerate the applicant from the mistake that has already been committed. Active participation in the engagement of one's own son in a particular post in violation of extant rules definitely constitutes a serious offence and attracts exemplary punitive action against the applicant, as per the submission made by the respondents in the counter affidavit. It is also one of the points raised in the counter that the UPSC has tendered their advice after thorough examination which was an independent consideration of all the relevant facts and circumstances of the case, findings of the I.O. and all the available documents. The President also found the advice of the UPSC as reasonable and decided on the quantum of punishment to be imposed on the applicant. Replying to the point that although the charges were the same, the Manager and the applicant were not proceeded against in a common disciplinary proceedings, it has been submitted by the respondents that the charges were not identical against the erring officials and therefore, there was no ground for conducting a common proceedings. The respondents have finally made a submission that although the applicant has made a prayer for staying the order of the Disciplinary Authority there is no scope for the same since the order of punishment of withholding 20% of pension for a period of five years and withholding gratuity permanently had been already implemented by the Competent Authority.